[Federal Register Volume 67, Number 232 (Tuesday, December 3, 2002)]
[Rules and Regulations]
[Pages 71900-71901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30774]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 001128334-2292-10; I.D. 112702B]


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Atlantic Large Whale Take Reduction Plan

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Temporary rule.

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SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, 
announces temporary restrictions consistent with the requirements of 
the Atlantic Large Whale Take Reduction Plan's (ALWTRP) implementing 
regulations. These restrictions apply to lobster trap and anchored 
gillnet fishermen in an area totaling approximately 1,600 square 
nautical miles (nm\2\) (2,965 km\2\), east of Portsmouth, NH, called 
Jeffreys Ledge, for 15 days. The purpose of this action is to provide 
immediate protection to an aggregation of North Atlantic right whales 
(right whales).

DATES: Effective beginning at 0001 hours December 5, 2002, through 2400 
hours December 20, 2002.

ADDRESSES: Copies of the proposed and final Dynamic Area Management 
rules, Environmental Assessment (EA), Atlantic Large Whale Take 
Reduction Team (ALWTRT) meeting summaries, and progress reports on 
implementation of the ALWTRP may also be obtained by writing Diane 
Borggaard, NMFS/Northeast Region, One Blackburn Drive, Gloucester, MA 
01930.
    Several of the background documents for the ALWTRP and the take 
reduction planning process can be downloaded from the ALWTRP web site 
at http://www.nero.nmfs.gov/whaletrp/.

FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast 
Region, 978-281-9145; or Patricia Lawson, NMFS, Office of Protected 
Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION: The ALWTRP was developed pursuant to section 
118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental 
mortality and serious injury of four species of whales (right whales, 
fin, humpback, and minke) due to incidental interaction with commercial 
fishing activities. The ALWTRP, implemented through regulations 
codified at 50 CFR 229.32, relies on a combination of fishing gear 
modifications and time/area closures to reduce the risk of whales 
becoming entangled in commercial fishing gear (and potentially 
suffering serious injury or mortality as a result).
    On January 9, 2002, NMFS published the final rule to implement the 
ALWTRP's Dynamic Area Management (DAM) program (67 FR 1133). The DAM 
program provides specific authority for NMFS to temporarily restrict 
the use of lobster trap and anchored gillnet fishing gear in areas 
north of 40[deg]N. lat. on an expedited basis to protect right whales. 
Under the DAM program, NMFS may: (1) require the removal of all lobster 
trap and anchored gillnet fishing gear for a 15-day period; (2) allow 
lobster trap and anchored gillnet fishing within a DAM zone with gear 
modifications determined by NMFS to sufficiently reduce the risk of 
entanglement; or (3) issue an alert to fishermen requesting the 
voluntary removal of all lobster trap and anchored gillnet gear for a 
15-day period, and asking fishermen not to set any additional gear in 
the DAM zone during the 15-day period.
    A DAM zone is triggered when NMFS receives a reliable report from a 
qualified individual of three or more right whales sighted within an 
area (75nm\2\ (139 km\2\)) such that right whale density is equal to or 
greater than 0.04 right whales per nm\2\ (1.85 km\2\). A qualified 
individual is an individual ascertained by NMFS to be reasonably able, 
through training or experience, to identify a right whale. Such 
individuals include, but are not limited to, NMFS staff, U.S. Coast 
Guard and Navy personnel trained in whale identification, scientific 
research survey personnel, whale watch operators and naturalists, and 
mariners trained in whale species identification through 
disentanglement training or some other training program deemed adequate 
by NMFS. A reliable report would be a credible right whale sighting.
    On November 20, 2002, NMFS Aerial Survey Team reported a sighting 
of 8 right whales in the proximity of 43[deg] 00' N lat. and 70[deg] 
08' W long. This position lies east of Portsmouth, NH, in an area 
called Jeffreys Ledge.
    Once a DAM zone is triggered, NMFS determines whether to impose 
restrictions on fishing and/or fishing gear in the zone. This 
determination is based on the following factors, including but not 
limited to: the location of the DAM zone with respect to other fishery 
closure areas, weather conditions as they relate to the safety of human 
life at sea, the type and amount of gear already present in the area, 
and a review of recent right whale entanglement and mortality data.
    NMFS has reviewed the factors and management options noted above 
and, through this action, restricts lobster trap and gillnet gear set 
in the waters bounded by:
    43[deg]19'N, 70[deg]35'W (NW Corner)
    43[deg]19'N, 69[deg]40'W
    42[deg]39'N, 69[deg]40''W
    42[deg]39'N, 70[deg]35'W (SW Corner)
    Please note that the western DAM boundary (70[deg]35'W) from 
43[deg]11'N due north to 43[deg]19'N will follow the coastline.

[[Page 71901]]

    The restrictions for the DAM zone are as follows: All anchored 
gillnet and lobster trap gear must be removed from these waters and no 
new gear may be set during the 15-day restricted period. The 
restrictions will be in effect beginning at 0001 hours December 5, 
2002, through 2400 hours December 20, 2002, unless terminated sooner or 
extended by NMFS, through another notification in the Federal Register. 
The restrictions will be announced to state officials, fishermen, 
Atlantic Large Whale Take Reduction Team (ALWTRT) members, and other 
interested parties through e-mail, phone contact, NOAA website, and 
other appropriate media immediately upon filing with the Federal 
Register.

Classification

    In accordance with section 118(f)(9) of the MMPA, the Assistant 
Administrator (AA) has determined that this action is necessary to 
implement a take reduction plan to protect North Atlantic right whales.
    This action falls within the scope of alternatives and impacts 
analyzed in the Final EA prepared for the ALWTRP's DAM program. Further 
analysis under the National Environmental Policy Act (NEPA) is not 
required.
    Providing prior notice and an opportunity for public comment on 
this action would prevent NMFS from executing its functions to protect 
and reduce serious injury and mortality of endangered right whales. To 
meet the goals of the DAM program, the agency needs to be able to 
create a DAM zone and implement restrictions on fishing gear as soon as 
possible once the criteria are triggered and NMFS determines that a DAM 
restricted zone is appropriate. The criteria were triggered with 
respect to this temporary rule on November 20, 2002. If NMFS were to 
provide notice and an opportunity for public comment prior to the 
creation of a DAM restricted zone, the aggregated right whales would be 
vulnerable to entanglement which could result in serious injury and 
mortality. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that 
good cause exists to waive notice and an opportunity to comment on this 
action to implement a DAM restricted zone to reduce the risk of 
entanglement of endangered right whales in commercial lobster trap and 
anchored gillnet gear as such procedures would be impracticable.
    For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), 
good cause exists to waive the 30-day delay in effective date. If NMFS 
were to delay for 30 days the effective date of this action, the 
aggregated right whales would be vulnerable to entanglement which could 
result in serious injury and mortality. Nevertheless, NMFS recognizes 
the need for fishermen to have time to remove their gear from a DAM 
zone once one is approved. Thus, NMFS makes this action effective 
beginning at 0001 hours December 5, 2002, through 2400 hours December 
20, 2002. NMFS will also endeavor to provide notice of this action to 
fishermen through other means as soon as possible.
    NMFS determined that the regulations establishing the DAM program 
and actions such as this one taken pursuant to those regulations are 
consistent to the maximum extent practicable with the enforceable 
policies of the approved coastal management program of the U.S. 
Atlantic coastal states. This determination was submitted for review by 
the responsible state agencies under section 307 of the Coastal Zone 
Management Act. Following state review of the regulations creating the 
DAM program, no state disagreed with NMFS' conclusion that the DAM 
program is consistent to the maximum extent practicable with the 
enforceable policies of the approved coastal management program for 
that state.
    The DAM program under which NMFS is taking this action contains 
policies with federalism implications warranting preparation of a 
federalism assessment under Executive Order 13132. Accordingly, in 
October 2001, the Assistant Secretary for Intergovernmental and 
Legislative Affairs, DOC, provided notice of the DAM program to the 
appropriate elected officials in states to be affected by actions taken 
pursuant to the DAM program. Federalism issues raised by state 
officials were addressed in the final rule implementing the DAM 
program. A copy of the federalism Summary Impact Statement for that 
final rule is available upon request (ADDRESSES).
    This rule has been determined to be not significant under Executive 
Order 12866.

    Authority: 16 U.S.C. 1361 et seq. and 50 CFR 229.32(g)(3)

    Dated: November 29, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory ProgramsNational Marine 
Fisheries Service.
[FR Doc. 02-30774 Filed 11-29-02; 2:54 pm]
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